Cavallo: Vacating conviction because of prohibition on consultation with counsel

In U.S. v. Cavallo, No. 12-15660 (June 22, 2015), the Court reversed the conviction of one defendant because the district court violated his Sixth Amendment right to counsel when it prohibited him from consulting with his attorney during the three days of trial and two overnight recesses during which his testimony lasted, but affirmed the convictions and sentences of the two other defendants, except for the restitution portion of the judgment. Under Geders v. U.S., 422 U.S. 80 (1976), the district court’s prohibition on a criminal defendant’s consultation with counsel violates the Sixth Amendment. The Court noted that this holding was subsequently limited by Perry v. Leeke, 488 U.S. 272 (1989), which held that a prohibition on consultation during a fifteen-minute recess did not violate the Sixth amendment. But here, Geders, not Perry, governed, because the prohibition extended to two overnight recesses. The Court noted that the district court permitted the defendant to consult his attorney concerning his “constitutional rights,” but found that this limitation did not salvage the prohibition, pointing out that based on other statements, the defendant understood the prohibition to prohibit all contact with his attorney, and noting that the Sixth Amendment allows more than communication about constitutional rights. Accordingly, the Court vacated this defendant’s conviction. Turning to the argument of a co-defendant, the Court found that the district court did not abuse its discretion once it found that, post-verdict a defendant initiated a contact with a juror, and as a sanction for this violation of Middle District of Florida Rule 5.01(d), and declined to consider the evidence of extrinsic influence on the jury’s verdict suggested by an email from a juror. The Court noted the strong interest in protecting jurors against needless harassment from unsuccessful parties. The Court noted that Fed. R. Evid. 606(b) narrowly limits the kind of testimony a juror can give about a verdict. Turning to sentencing, the Court found no abuse of discretion in the district court’s loss calculation, finding that a preponderance of the evidence supported including certain transactions for which the jury acquitted the defendants. The Court also rejected a substantive reasonableness challenge to the sentence, pointing out that having sought a lenient sentence for his co-defendant spouse, one defendant now could not complain that his sentence was disproportionately higher than hers. As to restitution, the Court found that the district court erred in failing to offset any value that the victim may have derived from a fraudulent scheme. The Court therefore vacated the restitution portion of the order, and remanded for resentencing on this part of the judgment.

Frediani: War Suspension Act suspends statute of limitations

In U.S. v. Frediani, No. 14-11998 (June 22, 2015), the Court rejected the argument that the Wartime Suspension of Limitations Act did not apply to suspend the five-year statute of limitations for charges of conspiracy to commit aircraft parts fraud. The Wartime Suspension of Limitations Act suspends the five-year statute of limitations for fraud against the United States until 5 years after the termination of hostilities, as proclaimed by a Presidential Proclamation, with notice to Congress, or by a concurrent resolution of Congress. No such proclamation had been made with regard to the conflict in Iraq (or Afghanistan) and Frediani argued that “indefinite tolling” would result because the United States will forever be engaged in small conflicts involving terror. The Court rejected this consideration as “irrelevant,” because the statute is “clear.” The Court also rejected the argument that the district court abused its discretion when it allowed the government to introduce, under Fed. R. Evid. 404(b), evidence of six additional fraudulent contracts that were not charged in the indictment. The Court found that the necessity to prove intent became more important when Frediani implied that he had only made a mistake.

Rosales-Bruno: Affirming 60-month upward variance for illegal re-entrant

In U.S. v. Rosales-Bruno, No. 12-15089 (June 19, 2015) (2-1), the Court affirmed the imposition, at resentencing, of an 87-month sentence for illegal reentry, rejecting the argument that the upward variance from the guideline range of 21-27 months was substantively unreasonable. The resentencing followed the Court’s vacatur of an earlier 87-month sentence because it was based on the district court’s erroneous finding that a prior conviction for “false imprisonment” qualified as a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii) – which, under the “modified categorical approach,” it did not. The Court noted the “considerable discretion” of sentencing courts. The prior convictions involved shoving a girlfriend into a stove and threatening to burn her, and, while on bond for this offense, assaulting this girlfriend and threatening to kill her. The Court noted that these offenses may properly be considered as violent crimes for sentencing purposes other than for the application of § 2L1.2(b)(1)(A)(ii). The Court also noted that Rosales-Bruno’s criminal history included several driving-related convictions, such as driving under the influence of alcohol. The Court rejected the argument that the district court failed to distinguish Rosales-Bruno’s criminal history from that of the “average” category V illegal reentrant with a felony conviction. The Court noted that this would require district courts to have a detailed profile of the average offender for each crime, including the average number and nature of his prior crimes. The Court noted that it does not require such “explicit comparison,” and that district court are “far more familiar than we are with other convicted-felon, category V illegal reentrants.” The Court also rejected the dissent’s criticism of the Court for sending a message to district courts that it will not vacate unreasonably long sentences, only unreasonably short ones. The Court cited on published case and two unpublished ones in which it had reversed unreasonably long sentences. The Court noted that it had vacated less than 1% of sentences on substantive reasonableness grounds. The Court further noted that district courts within the Circuit had varied downward for 9,307 sentences, and upwards for just 828 sentences. [Judge Wilson, dissenting, found that the published case on which the majority relied had reversed the sentence on procedural grounds, not substantive grounds.].

Wingo: District Court should have sua sponte ordered competency hearing

In U.S. v. Wingo, No. 13-14435 (June 17, 2015), the Court reversed a money laundering conviction, after a guilty plea, and an 84-month sentence, because the district court failed to sua sponte order a competency hearing, as required by 18 U.S.C. § 4241(a) when there is reasonable cause to believe that a defendant is mentally incompetent. After the defendant was adjudged guilty, the defense submitted an extensive sentencing memorandum, accompanied by lengthy medical reports, which indicated that had a diminished mental capacity, evidenced by brain atrophy and dysfunction. The Court recognized that the district court could not possibly have known of the extent of Wingo’s mental health problems until counsel filed the sentencing memorandum. The Court further recognized that the sentencing memorandum was directed towards obtaining a reduced sentence, and did not request a competency hearing. Nevertheless, the district court was required by § 4241(a) to sua sponte inquire into Wingo’s competency, and its failure to do so was an abuse of discretion. The Court held that if Wingo is determined to have been incompetent at the time of his guilty plea, the conviction and sentence must be vacated, subject to the government’s right to try him should he become competent.

Arvelo: Guilty Plea does not waive ineffective assistance claim

In Arvelo v. Sec., Fla. Dep’t of Corrections, No. 14-11441 (June 10, 2015), the Court reversed the denial of habeas relief to a Florida inmate serving a 60-year sentence for attempted sexual battery and kidnapping with the intent to commit sexual battery, who claimed his lawyer was ineffective in failing to move to suppress his confession. A Florida habeas court had rejected Arvelo’s ineffective assistance claim on the ground that Arvelo waived that claim by pleading guilty. The Court found that this ruling was contrary to well-established law, which holds that the entry of a plea does not waive an ineffective assistance claim. The district court reasoned that evidence other than Arvelo’s confession supported the conviction. Rejecting this finding, the Court noted that Arvelo’s confession was the only direct evidence supporting the “intent to commit sexual battery” element of the offenses. The District Court also reasoned that by pleading guilty, Arvelo received the “benefit” of lower, 60-year, sentence. The Court noted that this was the wrong analysis. What mattered was not the sentence, but the viability of the motion to suppress. The District Court further reasoned that Arvelo did not prove that his confession was involuntary. But because no evidentiary hearing was held, the factual record was not developed on the voluntariness of the confession. The Court therefore remanded the case for the district court to hold an evidentiary hearing, and to reconsider the ineffective assistance claim.

Wilson: Affirming convictions for fraudulent IRS refunds

In U.S. v. Wilson, No. 13-14846 (June 5, 2015), the Court affirmed the convictions and sentence of a defendant charged with converting to his own use fraudulently obtained IRS tax refunds. The Court rejected Wilson’s challenge to the sufficiency of the evidence, pointing out that the payees of the tax refunds did not file the tax returns associated with the refunds, and that Wilson’s check-cashing business contained no records that he had verified the identities of the payees, as required by law. The Court rejected the argument that the mere use of a person’s “name” sufficed to show use of a “means of identification” for purposes of aggravated identity theft. Acknowledging a circuit conflict, the Court ruled that the use of a name suffices. The Court also rejected the argument that the district court erroneously admitted the testimony of an accomplice. The Court noted that it was reviewing the issue for “plain error,” because the district court, pre-trial, did not rule definitively, and, after it ruled at trial, Wilson did not preserve his objection. The Court found no plain error, because this evidence was “intrinsic” to the charged crimes. The Court also rejected a Confrontation Clause challenge to the admission of text messages sent by Wilson’s defense attorney to a law enforcement agent regarding the delivery of boxes of documents. The Court found that the messages were “non-testimonial,” because they were informal, haphazard communications. Turning to sentencing, the Court rejected the argument that the district court should not have included refund checks in its loss calculation, because these checks were not charged in the indictment. The Court found that these checks were part of the “pattern” proved at trial.

Perkins: Defendant clogged the gears of justice

In U.S. v. Perkins, No. 13-13444 (June 1, 2015), the Court affirmed the convictions and sentence of a defendant charged with a credit card fraud scheme. The Court declined to review Perkins’ claim that the district court forced appointed counsel on him, and held a trial in his absence in violation of Fed. R. Crim. P. 43, because Perkins invited any error. The Court found that Perkins tried to “sabotage” the criminal proceedings by refusing to leave his holding cell for trial, and became violent when the district judge came to see him to persuade him to come to the courtroom. The Court also rejected the claim that Perkins was not competent to stand trial, citing recorded phone conversations from jail in which Perkins discussed how he could use Rule 43 to avoid a conviction. The Court rejected the argument that a photo array was unduly suggestive because Perkins was the only man in the lineup with gold teeth, finding this fact alone did not make the lineup unduly suggestive. Turning to sentencing, the Court rejected Perkins’ challenge to the two-level obstruction of justice enhancement: “Mr. Perkins willfully set out to clog the gears of the judicial process.” The Court rejected a substantive reasonableness challenge to the 360-month sentence, noting that the scheme involved hundreds of fraudulent credit cards and more than 100,000 account profiled that claimed hundreds of victims. “Mr. Perkins presents a danger to society.”

Griffin: Rule 60(b)(5) does not apply to denial of habeas relief

In Griffin v. Sec., Fla. Dep’t of Corrections, No. 14-14851 (May 28, 2015), the Court denied a defendant’s argument that he was entitled to a certificate of appealability (COA) because jurists of reason could debate whether Federal Rule of Civil Procedure 60(b)(5), which permits litigants to challenge a final judgment when applying it prospectively is no longer equitable, permitted him to raise anew procedurally-defaulted ineffective-assistance-of-counsel claims. The Court held that Rule 60(b)(5) does not apply to the denial of habeas relief.